Citation Nr: 0120985
Decision Date: 08/16/01 Archive Date: 08/17/01
DOCKET NO. 94-41 488 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to a rating in excess of 10 percent for residuals
of a left knee injury.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. Ferrandino, Associate Counsel
INTRODUCTION
The veteran had active service from November 1979 to November
1983, and from November 1987 to October 1992. He was a
member of the Reserve from October 1985 to October 1987.
This appeal initially came before the Board of Veterans'
Appeals (Board) from the February 1993 rating decision from
the Department of Veterans Affairs (VA) St. Petersburg,
Florida Regional Office (RO) that granted service connection
for arthritis of the left knee and assigned a 0 percent
evaluation. This case was remanded in March 1999 for further
development.
By rating decision in September 1999, the RO increased the
evaluation for the veteran's service connected residuals of a
left knee injury from 0 percent to 10 percent. The veteran
has continued his appeal of the 10 percent rating.
REMAND
In this case, the record is now inadequate for rating the
veteran as there is no recent examination that fully
evaluates the veteran subsequent to an arthroscopy of the
left knee in August 1999. Additionally, treatment records
for the veteran leading up to this procedure should be
obtained, as this case involves an initial rating following
the grant of service connection and staged ratings may be
applicable for the veteran's left knee disability. Fenderson
v. West, 12 Vet. App. 119 (1999).
The new examination should clarify whether there is
limitation of motion due to the service connected left knee
disability and whether the service connected left knee
disability involves arthritis of the knee, as treatment
records from the time of the August 1999 surgery seem to
indicate the veteran does not have arthritis of the left
knee. However, the veteran was originally service connected
in October 1992 for arthritis of the left knee.
The requirements of DeLuca v. Brown, 8 Vet. App. 202 (1995)
should be addressed in the examination to fully evaluate the
veteran's service connected left knee disability. In DeLuca,
the United States Court of Appeals for Veterans Claims (known
as the United States Court of Veterans Appeals prior to March
1, 1999) held that in evaluating a service-connected joint,
functional loss due to pain under 38 C.F.R. § 4.40 and
functional loss due to weakness, fatigability, incoordination
or pain on movement under 38 C.F.R. § 4.45 must be addressed.
In addition to the above, the principles of rating enunciated
in VAOPGCPREC 23-97 (July 1, 1997) (under certain
circumstances, separate ratings may be assigned for separate
manifestations of a knee disability) and VAOPGCPREC 9-98
(August 14, 1998) must be considered, if it is determined
that veteran has arthritis of the left knee that is
associated with the service connected knee disability.
The RO's attention is directed to the Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475,114 Stat. 2096,
(the Act) which was signed by the President on November 9,
2000. The Act made several changes to Chapter 51 of Title
38, United States Code. Perhaps most significantly, it added
a new section 5103A, (38 U.S.C.A. § 5103A (West Supp. 2001))
which defines VA's duty to assist a claimant in obtaining
evidence necessary to substantiate the claim and eliminated
from section 5107(a) the necessity of submitting a well-
grounded claim to trigger the duty to assist. Id. §§ 3(a),
4, at 2097-98. With regard to the duty to assist, VA must
obtain relevant private and VA medical records and provide
the veteran with VA examinations, where such examinations may
substantiate entitlement to the benefit sought. On Remand,
the RO must assure that the provisions of this new Act are
complied with to the extent they apply to the instant issue.
Accordingly, the case is REMANDED to the RO for the
following:
1. The RO must review the claims file
and ensure that all notification and
development actions required by the
38 U.S.C.A. § 5103A (West Supp. 2001) are
completed. In particular, the RO should
ensure that the new notification
requirements and development procedures
are fully complied with and satisfied.
2. The RO should contact the veteran and
obtain the names and addresses of all
health care providers (VA and private)
who treated him for a left knee
disability since service. Thereafter,
the RO should obtain legible copies of
all records that have not already been
obtained, including any additional
treatment records from T. Joseph Dennie,
M.D., particularly from prior to the
veteran's surgery on the left knee in
August 1999. Treatment records from this
time period from a VA Medical Center as
specified by the veteran should
additionally be obtained.
3. Thereafter, the veteran should be
afforded an orthopedic examination to
determine the current severity of the
service connected left knee disability.
Notification of the date, time, and place
of the examination should be sent to the
veteran. The claims folder must be made
available to the examiner for review
prior to the examination. All necessary
diagnostic testing should be done to
determine the full extent of all
disability present. All disability
should be evaluated in relation to its
history with emphasis on the limitation
of activity and functional loss due to
pain imposed by the disability at issue
in light of the whole recorded history.
The orthopedic examiner should indicate
as follows:
I. Describe the left knee and
indicate whether there are any
findings of subluxation,
instability, locking, swelling, or
loss of range of motion. Any
instability should be described as
mild, moderate, or severe.
II. Determine the range of motion
of the left knee in degrees. The
examiner should indicate whether
there is any ankylosis of the left
knee; and, if so, the position in
degrees should be given. It should
be indicated whether full motion is
considered 0-140 degrees, or whether
some other measurement is used. For
VA purposes, normal flexion is to
140 degrees and normal extension is
to 0 degrees.
III. Determine whether the left
knee exhibits weakened movement,
excess fatigability, or
incoordination attributable to the
service connected disability; and,
if feasible, this determination
should be expressed in terms of the
degree of additional range of motion
loss or ankylosis (which should be
described in degrees) due to any
weakened movement, excess
fatigability, or incoordination.
IV. Express an opinion on whether
pain could significantly limit
functional ability during flare-ups
or when the left knee is used
repeatedly over a period of time.
This determination should also, if
feasible, be portrayed in terms of
the degree of additional range of
motion loss or ankylosis (express in
degrees) due to pain on use or
during flare-ups.
V. The examiner should determine if
the veteran has arthritis of the
left knee, noting that there are
previous diagnoses of osteoarthritis
of the left knee.
4. After completion of the requested
development, the RO should review the
veteran's claim on the basis of all the
evidence of record. Consideration should
be given to 38 C.F.R. §§ 4.40 and 4.45,
the provisions of DeLuca and VAOPGCPREC
23-97 (July 1, 1997). In this regard,
the RO should additionally give
consideration as to whether any arthritis
of the left knee is part of the service
connected disability.
If the action taken remains adverse to
the veteran, he and his representative
should be furnished a Supplemental
Statement of the Case (SSOC).
Consideration should be given to the case
of Fenderson v. West, 12 Vet. App. 119
(1999). Therein, the Court held that,
with regard to initial ratings following
the grant of service connection, separate
ratings can be assigned for separate
periods of time based on the facts
found-a practice known as "staged"
ratings. The SSOC should include
additionally include consideration and
discussion of 38 C.F.R. § 3.655 if the
veteran fails to appear for the scheduled
examination. If the veteran fails to
appear for the scheduled examination, the
RO should include verification in the
claims file as to the date the
examination was scheduled and the address
to which notification was sent. It
should be further indicated whether the
letter was returned as undeliverable.
The veteran and his representative should
then be afforded an opportunity to
respond.
Thereafter, the case should be returned to the Board, if in
order. The appellant has the right to submit additional
evidence and argument on the matter or matters the Board has
remanded to the regional office. Kutscherousky v. West, 12
Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2001) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
MICHAEL D. LYON
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).